DELPF symposium focuses on environmental law and policy in a new administration

November 19, 2008Duke Law News

Nov. 19, 2008 — Environmental experts gathered for the annual Duke Environmental Law and Policy Forum Symposium agreed that the financial crisis may hamper the next president’s ability to make progress on an environmental agenda.

The student-organized symposium, held at the Law School on Oct. 24, featured a series of round-table discussions with top academics and practitioners in such areas as international environmental agreements, pollution, and natural resources to discuss the environmental law and policy challenges facing the new administration.

“I would say that about six months, a year ago, those of us who are concerned about the environment were probably fairly euphoric about the coming election and the coming administration,” said William Chameides, dean of the Nicholas School of the Environment, in his opening remarks. “After eight years of disappointing progress on the environment, it looked like we were poised for some major progress … Unfortunately, I think that in the last six months or so have seen some setbacks that have caused a lack of focus on environmental issues.”

Panelists discussing international environmental law and policy expressed hope that the United States will be more engaged in multilateral environmental talks than it has been in recent years. According to Amy Fraenkel Regional Director of the United Nations Environment Programme Regional Office for North America, it will be important to link innovative environmental solutions with economic policy worldwide as domestic economic troubles ripple outward. But the U.S. needs to do more than just “be in the room” during negotiations to wield influence going forward, she said.

“The fact is, with the U.S. not being a party in the forums, you lose your seat at the table. Other countries are starting to be less interested in what the U.S. has to say if they’re not a party. Others countries are less interested in carrying the U.S. position in these meetings and being a voice for the U.S.”

David Hunter, director of the Program on International and Comparative Environmental Law at American University’s Washington College of Law, said he expects a new administration to address climate change and carbon regulation on a global level. “I think they will come with the inclination to address climate, and to address it in the international, multilateral process, and they’ll be supported by a Congress that will be taking up climate and the regulation of carbon.”

Addressing natural resource issues, J.B. Ruhl, a law professor at Florida State University, cautioned against use of the Endangered Species Act (ESA) as a tool to regulate climate issues. He argued that doing so could put stress on enforcement agencies financially, stretch the statute’s legal definition, and reduce its politically palatability.

“The listing of the polar bear led to many claims that the ESA could now become the basis for regulating greenhouse gas emissions,” he said. “I have taken the position that that is misplaced confidence in the power and scope of the ESA and might, in the long run, be a misguided use of its regulatory power.”

The next administration might find a valuable opportunity to focus on energy efficiency in the financial crisis, suggested Professor Noah Sachs of the University of Richmond Law School.

“It’s the one environmental program where you can put it on your agenda and say ‘This is a cost savings program over time and this is a green jobs program up front,’” he said. “From that perspective I think efficiency programs might have some political traction in 2009, 2010, in a way that other environmental programs don’t.”

Vickie Patton, deputy general counsel for the Environmental Defense Fund, ended the program on a cautionary note, warning that a new administration would have to work fast to craft lasting environmental policy. Patton said that optimism about environmental policy was high when Bill Clinton took office in 1992, but that hopes were dashed during the congressional election two years later, when Republicans gained control of the House and the Senate.

“It was an exciting time,” she said. “Bill Clinton came in, Al Gore came in, we were going to do profound things in terms of environmental policy — and it was fleeting. It was over. Two years.”

“We are here in the law school talking about environmental issues. We have a school of the environment, we have an institute that looks at environmental policy solutions, we’re all here, and that is the mantra and the culture of our program,” he said. “In fact, from an environmental point of view, we all know that you can’t get anything accomplished on the environment without having lawyers present.”